I.B.E.W. Construction Council of Ontario v. Turnay Electric Ltd.
3587-99-R I.B.E.W. Construction Council of Ontario, Applicant v. Turnay Electric Ltd., Responding Party.
BEFORE: David A. McKee, Vice‑Chair, and Board Members J. G. Knight and G. McMenemy.
DECISION OF THE BOARD; March 13, 2000
This is an application for certification filed under the construction industry provisions of the Labour Relations Act, 1995, S.O. 1995, ch. 1 (the "Act").
The Board finds that Locals 105, 115, 120, 303, 353, 402, 530, 586, 773, 804, 894, 1687 and 1739 are trade unions within the meaning of sections 1(1) and 126 of the Act. The Board finds that they are constituent trade unions of the applicant.
The Board finds that the applicant is a council of trade unions within the meaning of sections 1(1) and 126 of the Act.
The Board is satisfied that the constituent trade unions of the applicant have vested appropriate authority in the applicant to enable it to discharge the responsibilities of a bargaining agent within the meaning of section 12(1) of the Act.
The Board also finds that the applicant is an affiliated bargaining agent of a designated employee bargaining agency. Pursuant to the designation issued by the Minister under section 153(1) of the Act on December 12, 1977, the designated employee bargaining agency is the International Brotherhood of Electrical Workers and the IBEW Construction Council of Ontario.
The responding party filed a response within the time stipulated by Rule 135 of the Board’s Rules of Procedure.
Both the application and the response in this and three other files raise an issue which the Board has apparently not faced before me. In Board File 3587-99-R, 3588-99-R, 3589-99-R and 3590-99-R the applicant has filed an application for certification against one responding party, but with respect to the other three has stated “If necessary, the Applicant relies on section 1(4) of the Act with respect to Bison Electric Incorporated, Bison Electrical & Mechanical Inc., Turnay Electric Ltd. and Southwold Diversified Ltd.”. The response in each application refers to the other three files and states: “The responding parties in each file are related employers within the meaning of section 1(4) of the Labour Relations Act”. The applicant seeks to rely on cards filed in more than one file. The lists filed by the responding party in each application are different in both number and composition. There are, however, some names that appear on more than one list filed by the responding party.
There is no formal application under subsection 1(4), and the applicant’s reliance on it is not unequivocal. Accordingly, at this stage the Board will treat these applications as four separate applications which should be dealt with simultaneously.
It appears to the Board on an examination of only the information provided in the application and the information and membership evidence filed by the applicant (see section 8(3) of the Act), that not less than forty per cent of the individuals in the bargaining unit proposed in the application for certification were members of the union at the time the application was made.
The Board finds that this is an application for certification within the meaning of section 128 of the Act and is an application made pursuant to section 158(1) of the Act which provides that:
An application for certification as bargaining agent which relates to the industrial, commercial and institutional sector of the construction industry referred to in the definition of "sector" in section 126 shall be brought by either,
(a) an employee bargaining agency; or
(b) one or more affiliated bargaining
agents of the employee bargaining agency,
on behalf of all affiliated bargaining agents of the employee bargaining agency and the unit of employees shall include all employees who would be bound by a provincial agreement together with all other employees in at least one appropriate geographic area unless bargaining rights for such geographic area have already been acquired under subsection (2) or by voluntary recognition.
The Board further finds, pursuant to section 158(1) of the Act, that all electricians and electricians’ apprentices in the employ of the responding party in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all electricians and electricians’ apprentices in the employ of the responding party in all other sectors of the construction industry in the Counties of Essex and Kent; and in the Counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin, save and except non-working foremen and persons above the rank of non‑working foreman, constitute a unit of employees of the responding party appropriate for collective bargaining.
Having regard to the Board's finding as to the appropriate bargaining unit, the Board directs that a representation vote be taken of the individuals in the following voting constituency:
all electricians and electricians’ apprentices in the employ of Turnay Electric Ltd. in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all electricians and electricians’ apprentices in the employ of Turnay Electric Ltd. in all other sectors of the construction industry in the Counties of Essex and Kent; and in the Counties of Oxford, Perth, Huron, Middlesex, Bruce and Elgin, save and except non-working foremen and persons above the rank of non‑working foreman.
The vote will be held on March 15, 2000 . Vote arrangements are set out on the attached "Notice of Vote and of Meeting".
The responding party is directed to post copies of the application for certification, the “Notice to Employees of Application for Certification”, this decision and the "Notice of Vote and of Meeting" in a location or locations where they are most likely to come to the attention of those individuals who are eligible to vote.
All individuals who were employed by Turnay Electric Ltd. and at work in the voting constituency on March 8, 2000 are eligible to vote.
Voters will be asked to indicate whether or not they wish to be represented by the applicant in their employment relations with the responding party.
In addition, a Notice to Employees of an application under subsection 1(4) is to be posted. The parties are directed to file their submissions with respect to the application under subsection 1(4) along with their representations about all other issues.
The responding party has given notice pursuant to section 8.1 and has asked that the ballot box be sealed. Section 8.1 does not apply to an application under the construction industry provisions. Bayview-Wellington Homes Inc., [1999] OLRB Rep. Nov. 954. In this case there will be no segregating of ballots (except for challenges) and no sealing of ballot boxes (except at the discretion of the vote officer after hearing from the parties at the vote). The issue raised by subsection 1(4) does not cause the Board to vary this practice. Given that both parties assert that certain individuals were employed by more than one corporation on the application date (an unusual but not impossible situation), nothing would be accomplished by segregating ballots and sealing the ballot boxes. Since an employee might cast a ballot in more than one vote, it would not be possible in the future to use the ballots cast in this vote in any reconfigured list.
Any party or person who wishes to make representations to the Board about any issue relating to the application for certification which remains in dispute, other than status disputes, must file a detailed statement of representations and all material facts upon which they rely with the Board and deliver it to the other parties, so that it is received within five days (excluding Saturdays, Sundays and holidays on which the Board is closed) of the date on which the vote is taken. Representations with respect to any status dispute must be made in accordance with the directions provided in Information Bulletin No. 9: Status Disputes in Certification Applications in the Construction Industry.
This matter is referred to the Registrar.
“David A. McKee”
for the Board